People For the American Way

Flake and McCain’s Next Steps for AZ Nominees

Yesterday, Arizona Sens. John McCain and Jeff Flake persuaded Judiciary Committee Republicans not to delay a scheduled committee vote on six nominees from their home state. Chairman Leahy noted that the vote would not have happened but for McCain and Flake's efforts. The senators made their colleagues understand that six of their state's 13 federal district judgeships are vacant, and that the crisis is so serious that the Administrative Office of U.S. Courts has officially designated all six vacancies as judicial emergencies.

Now the question is whether they will try to get that message across to all the other Senate Republicans.

In ordinary times, having been confirmed by the Judiciary Committee, the six Arizona nominees would quickly get a confirmation vote on the Senate floor. But since Republicans are blocking votes on any and all judicial nominations, the Arizonans find themselves at the back of a ridiculously long line, with 28 nominees ahead of them.

So before anyone can even think about those vacancies in Arizona getting filled, the Senate will have to conduct 28 cloture votes to break 28 filibusters. This is an extremely time-consuming process, because Senate rules allow Republicans to demand hours of "post-cloture debate" before a confirmation vote. Absent Republican willingness to waive the rule (which we have not seen so far), each circuit court nominee will take 30 hours of the Senate's time for needless post-cloture debate. For district court nominees, the same 30-hour rule that usually applies to them has been reduced to two hours under a temporary rule that expires at the end of the 113th Congress (in early January 2015).

That's nearly 200 hours of time-wasting "post-cloture debate" before the Senate can finally get to the Arizona nominees. Assuming 40-hour workweeks, that's five wasted weeks of doing nothing else. Of course, the Senate does actually have other items on its agenda, so absent a lifting of the GOP's obstruction, the Arizona seats will remain empty for many more months.

But it doesn't have to be that way. McCain and Flake have already demonstrated their willingness to exercise their influence with those of their GOP colleagues who serve on the Judiciary Committee. Now the question is whether they will try to persuade the rest of their colleagues to end the blockade and eliminate the bottleneck so the Senate can get to the Arizona seats in a timely manner.